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S5374 - Details

S5374 - Summary

Relates to the modification of the procedure for interviews of parole applicants and to the disclosure of parole applicant records.

S5374 - Sponsor Memo

BILL NUMBER:S5374
TITLE OF BILL:
An act
to amend the executive law, in relation to modifying the procedure for
interviews of parole applicants and to the disclosure of parole
applicant records
PURPOSE:
To provide clarification and guidance to inmates who have been denied
parole in order to take proper steps to be granted parole in the
future.
SUMMARY OF PROVISIONS:
Section One of the bill states that at least three months prior to a
parole hearing, a parole applicant may be personally interviewed by a
member or members of the parole board to determine if the parole
applicant shall be paroled.
The interview shall take place with all parties in the same room and
videotaped. This recording shall be limited to the Parole Board, the
parole applicant and his or her representative.
At least one month before the interview, the parole applicant must
have access to the contents of his or her parole file.

The victim, upon request shall be provided the inmate's status
reports, psychiatric evaluations and parole applicant's "parole
release plan."
The Parole Board must state in detail, and not in vague terms, the
factors and reasons for the denial of parole and the specific
requirements for actions to be taken, programs or accomplishments to
be completed, or the changes in performance or conduct to be made, or
corrective action to be taken in order to qualify for parole release.
Within ninety days of the hearing decision, the department shall
provide the parole applicant access to the program or program
activities and applicant shall be granted a parole hearing upon
successful completion of the program. If all criteria is met, release
shall be granted.
Section Two requires the Parole Board to review the parole applicant's
preparedness for reentry and reintegration into society. Further, as
part of the re-entry review, the Parole Board must determine that
there is or is not reasonable cause to believe that the release of
the parole applicant would create a present danger to the victim or
the victim's representative, The Parole Board must determine the
effectiveness of the parole applicant's participation and performance,
if any, in a reconciliation/restorative justice-type conference with
the victim or victim representatives.
EXISTING LAW:
New Bill.
JUSTIFICATION:
Under current law, the Parole Board may deny an inmate parole simply
due to the nature of his or her crime. Under this criteria, an inmate
may never become eligible for parole - no matter how successful he or
she has been in rehabilitative and educational programs.
This bill would require the Parole Board to inform an inmate that was
denied parole the exact reasons for the denial, and what steps are
required to be considered for parole in the future.
LEGISLATIVE HISTORY:
New Bill.
FISCAL IMPLICATIONS:
To be determined.
LOCAL FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become law;
provided that the amendments to paragraph (a) of subdivision 2 of
section 259-1 of the executive law made by section one of this act
shall be subject to the expiration and reversion of such paragraph as
provided by section 74 of chapter 3 of the laws of 1995, as amended,
where upon such date the provisions of section two of this act shall
take effect.

S T A T E O F N E W Y O R K
________________________________________________________________________
5374
2011-2012 Regular Sessions
I N S E N A T E
May 13, 2011
___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction
AN ACT to amend the executive law, in relation to modifying the proce-
dure for interviews of parole applicants and to the disclosure of
parole applicant records
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 2 of section 259-i of the
executive law, as amended by section 38-f-1 of subpart A of part C of
chapter 62 of the laws of 2011, is amended to read as follows:
(a) (i) Except as provided in subparagraph (ii) of this paragraph, at
least [one month] THREE MONTHS prior to the date on which [an inmate] A
PAROLE APPLICANT may be paroled pursuant to subdivision one of section
70.40 of the penal law, a member or members as determined by the rules
of the board shall personally interview such [inmate] PAROLE APPLICANT
and determine whether he OR SHE should be paroled in accordance with the
[guidelines] PROCEDURES adopted pursuant to subdivision four of section
two hundred fifty-nine-c of this article. THE INTERVIEW SHALL TAKE
PLACE WITH ALL PARTIES PRESENT IN THE SAME ROOM. THE INTERVIEW SHALL BE
RECORDED AUDIO-VISUALLY AND THIS RECORDING SHALL BE MADE AVAILABLE TO
THE BOARD AND THE PAROLE APPLICANT OR THE PAROLE APPLICANT'S REPRESEN-
TATIVE ONLY. AT LEAST ONE MONTH PRIOR TO THE PAROLE HEARING PAROLE
APPLICANTS SHALL BE PROVIDED THE OPPORTUNITY TO REVIEW ALL DOCUMENTS
CONTAINED IN THEIR PAROLE FILE OR THAT OTHERWISE WILL BE MADE AVAILABLE
FOR THE BOARD'S DISCRETIONARY RELEASE CONSIDERATION. NO DOCUMENTS SHALL
BE CONSIDERED CONFIDENTIAL EXCEPT AS PROVIDED IN SUBPARAGRAPH (I) OF
PARAGRAPH (C) OF THIS SUBDIVISION. RECORDS CONCERNING OR RELATING TO THE
MENTAL HEALTH EXAMINATION OR TREATMENT OF THE PAROLE APPLICANT SHALL BE
DISCLOSED UNLESS, IN ACCORDANCE WITH THE STANDARDS AND PROCEDURES SET
FORTH IN SECTION 33.16 OF THE MENTAL HYGIENE LAW, IT IS DETERMINED BY A
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11519-01-1

S. 5374 2
MENTAL HEALTH PRACTITIONER THAT SUCH DISCLOSURE CAN REASONABLY BE
EXPECTED TO CAUSE SUBSTANTIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLI-
CANT OR OTHERS AND THAT THIS HARM WOULD OUTWEIGH THE PAROLE APPLICANT'S
RIGHT OF ACCESS TO THE RECORD. AT LEAST THIRTY DAYS BEFORE THE PAROLE
HEARING, IF REQUESTED BY THE VICTIM, AS THE TERM VICTIM IS DEFINED IN
SUBDIVISION TWO OF SECTION 380.50 OF THE CRIMINAL PROCEDURE LAW, THE
FOLLOWING INFORMATION SHALL BE PROVIDED TO THE VICTIM, OR THE VICTIM'S
REPRESENTATIVE: INMATE STATUS REPORTS; INMATE'S PSYCHIATRIC EVALUATION,
IF THERE IS ONE AVAILABLE AND ONLY UPON CONSENT OF THE PAROLE APPLI-
CANT; AND A COPY OF THE PAROLE APPLICANT'S "PAROLE RELEASE PLAN" IN THE
EVENT THAT THE APPLICANT SUBMITS ONE. If parole is not granted upon such
review, the [inmate] BOARD WILL BE REQUIRED TO STATE IN DETAIL AND NOT
IN CONCLUSORY TERMS THE FACTORS AND REASONS FOR THE DENIAL AND THE
SPECIFIC REQUIREMENTS FOR ACTIONS TO BE TAKEN, PROGRAMS OR ACCOMPLISH-
MENTS TO BE COMPLETED, OR CHANGES IN PERFORMANCE OR CONDUCT TO BE MADE,
OR CORRECTIVE ACTION OR ACTIONS TO BE TAKEN, IN ORDER TO QUALIFY FOR
PAROLE RELEASE. THE BOARD SHALL SPECIFY A DATE NOT MORE THAN TWENTY-FOUR
MONTHS FROM SUCH DETERMINATION FOR RECONSIDERATION. THE PAROLE APPLICANT
shall be informed in writing within two weeks of such appearance of the
factors and reasons for such denial of parole[. Such reasons shall be
given in detail and not in conclusory terms. The board shall specify a
date not more than twenty-four months from such determination for recon-
sideration, and the procedures to be followed upon reconsideration shall
be the same] AND THE SPECIFIC REQUIREMENTS AND SHALL BE PROVIDED WITH A
COPY OF THE SCORED RISK AND NEEDS ASSESSMENT INSTRUMENT CONSIDERED BY
THE BOARD. WITHIN NINETY DAYS OF THE HEARING DECISION, THE DEPARTMENT
SHALL PROVIDE TO THE PAROLE APPLICANT ACCESS TO THE PROGRAM OR PROGRAMS,
ACTIVITIES AND/OR FACILITIES NEEDED IN ORDER TO PROVIDE THE OPPORTUNITY
TO FULFILL THE REQUIREMENTS SET FORTH BY THE BOARD. THE PAROLE APPLICANT
SHALL BE SCHEDULED FOR A REAPPEARANCE BEFORE THE BOARD UPON COMPLETION
OF THE SPECIFIC REQUIREMENTS AS PREVIOUSLY SET FORTH BY THE BOARD IF
SUCH COMPLETION OCCURS SOONER THAN THE DATE SPECIFIED BY THE BOARD. IF
THE REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD HAVE BEEN SUCCESSFUL-
LY COMPLETED AND THE PAROLE APPLICANT'S INSTITUTIONAL RECORD HAS BEEN
SATISFACTORY DURING THE TIME BETWEEN THE PREVIOUS AND CURRENT PAROLE
HEARING, RELEASE SHALL BE GRANTED. If the [inmate] PAROLE APPLICANT is
released, he OR SHE shall be given a copy of the conditions of parole.
Such conditions shall where appropriate, include a requirement that the
parolee comply with any restitution order, mandatory surcharge, sex
offender registration fee and DNA databank fee previously imposed by a
court of competent jurisdiction that applies to the parolee. The condi-
tions shall indicate which restitution collection agency established
under subdivision eight of section 420.10 of the criminal procedure law,
shall be responsible for collection of restitution, mandatory surcharge,
sex offender registration fees and DNA databank fees as provided for in
section 60.35 of the penal law and section eighteen hundred nine of the
vehicle and traffic law.
(ii) Any [inmate] PAROLE APPLICANT who is scheduled for presumptive
release pursuant to section eight hundred six of the correction law
shall not appear before the board as provided in subparagraph (i) of
this paragraph unless such [inmate's] PAROLE APPLICANT'S scheduled
presumptive release is forfeited, canceled, or rescinded subsequently as
provided in such law. In such event, the [inmate] PAROLE APPLICANT shall
appear before the board for release consideration as provided in subpar-
agraph (i) of this paragraph as soon thereafter as is practicable.
S. 5374 3
S 2. Paragraph (a) of subdivision 2 of section 259-i of the executive
law, as amended by section 38-f-2 of subpart A of part C of chapter 62
of the laws of 2011, is amended to read as follows:
(a) At least [one month] THREE MONTHS prior to the expiration of the
minimum period or periods of imprisonment fixed by the court or board, a
member or members as determined by the rules of the board shall
personally interview [an inmate] A PAROLE APPLICANT serving an indeter-
minate sentence and determine whether he OR SHE should be paroled at the
expiration of the minimum period or periods in accordance with the
procedures adopted pursuant to subdivision four of section two hundred
fifty-nine-c. THE INTERVIEW SHALL TAKE PLACE WITH ALL PARTIES PRESENT
IN THE SAME ROOM. THE INTERVIEW SHALL BE RECORDED AUDIO-VISUALLY AND
THIS RECORDING SHALL BE MADE AVAILABLE TO THE BOARD AND THE PAROLE
APPLICANT OR THE PAROLE APPLICANT'S REPRESENTATIVE ONLY. AT LEAST ONE
MONTH PRIOR TO THE PAROLE HEARING PAROLE APPLICANTS SHALL BE PROVIDED
THE OPPORTUNITY TO REVIEW ALL DOCUMENTS CONTAINED IN THEIR PAROLE FILE
OR THAT OTHERWISE WILL BE MADE AVAILABLE FOR THE BOARD'S DISCRETIONARY
RELEASE CONSIDERATION. NO DOCUMENTS SHALL BE CONSIDERED CONFIDENTIAL
EXCEPT AS PROVIDED IN SUBPARAGRAPH (I) OF PARAGRAPH (C) OF THIS SUBDIVI-
SION. RECORDS CONCERNING OR RELATING TO THE MENTAL HEALTH EXAMINATION
OR TREATMENT OF THE PAROLE APPLICANT SHALL BE DISCLOSED UNLESS, IN
ACCORDANCE WITH THE STANDARDS AND PROCEDURES SET FORTH IN SECTION 33.16
OF THE MENTAL HYGIENE LAW, IT IS DETERMINED BY A MENTAL HEALTH PRACTI-
TIONER THAT SUCH DISCLOSURE CAN REASONABLY BE EXPECTED TO CAUSE SUBSTAN-
TIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLICANT OR OTHERS AND THAT
THIS HARM WOULD OUTWEIGH THE PAROLE APPLICANT'S RIGHT OF ACCESS TO THE
RECORD. AT LEAST THIRTY DAYS BEFORE THE PAROLE HEARING, IF REQUESTED BY
THE VICTIM, AS THE TERM VICTIM IS DEFINED IN SUBDIVISION TWO OF SECTION
380.50 OF THE CRIMINAL PROCEDURE LAW, THE FOLLOWING INFORMATION SHALL BE
PROVIDED TO THE VICTIM, OR THE VICTIM'S REPRESENTATIVE: INMATE STATUS
REPORTS; INMATE'S PSYCHIATRIC EVALUATION, IF THERE IS ONE AVAILABLE AND
ONLY UPON CONSENT OF THE PAROLE APPLICANT; AND A COPY OF THE PAROLE
APPLICANT'S "PAROLE RELEASE PLAN" IN THE EVENT THAT THE APPLICANT
SUBMITS ONE. If parole is not granted upon such review, the [inmate]
BOARD WILL BE REQUIRED TO STATE IN DETAIL AND NOT IN CONCLUSORY TERMS
THE FACTORS AND REASONS FOR THE DENIAL AND THE SPECIFIC REQUIREMENTS FOR
ACTIONS TO BE TAKEN, PROGRAMS OR ACCOMPLISHMENTS TO BE COMPLETED, OR
CHANGES IN PERFORMANCE OR CONDUCT TO BE MADE, OR CORRECTIVE ACTION OR
ACTIONS TO BE TAKEN, IN ORDER TO QUALIFY FOR PAROLE RELEASE. THE BOARD
SHALL SPECIFY A DATE NOT MORE THAN TWENTY-FOUR MONTHS FROM SUCH DETERMI-
NATION FOR RECONSIDERATION. THE PAROLE APPLICANT shall be informed in
writing within two weeks of such appearance of the factors and reasons
for such denial of parole[. Such reasons shall be given in detail and
not in conclusory terms. The board shall specify a date not more than
twenty-four months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be the same] AND
THE SPECIFIC REQUIREMENTS AND SHALL BE PROVIDED WITH A COPY OF THE
SCORED RISK AND NEEDS ASSESSMENT INSTRUMENT CONSIDERED BY THE BOARD.
WITHIN NINETY DAYS OF THE HEARING DECISION, THE DEPARTMENT SHALL PROVIDE
TO THE PAROLE APPLICANT ACCESS TO THE PROGRAM OR PROGRAMS, ACTIVITIES
AND/OR FACILITIES NEEDED IN ORDER TO PROVIDE THE OPPORTUNITY TO FULFILL
THE REQUIREMENTS SET FORTH BY THE BOARD. THE PAROLE APPLICANT SHALL BE
SCHEDULED FOR A REAPPEARANCE BEFORE THE BOARD UPON COMPLETION OF THE
SPECIFIC REQUIREMENTS AS PREVIOUSLY SET FORTH BY THE BOARD IF SUCH
COMPLETION OCCURS SOONER THAN THE DATE SPECIFIED BY THE BOARD. IF THE
REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD HAVE BEEN SUCCESSFULLY
S. 5374 4
COMPLETED AND THE PAROLE APPLICANT'S INSTITUTIONAL RECORD HAS BEEN
SATISFACTORY DURING THE TIME BETWEEN THE PREVIOUS AND CURRENT PAROLE
HEARING, RELEASE SHALL BE GRANTED. If the [inmate] PAROLE APPLICANT is
released, he OR SHE shall be given a copy of the conditions of parole.
Such conditions shall where appropriate, include a requirement that the
parolee comply with any restitution order and mandatory surcharge previ-
ously imposed by a court of competent jurisdiction that applies to the
parolee. The conditions shall indicate which restitution collection
agency established under subdivision eight of section 420.10 of the
criminal procedure law, shall be responsible for collection of restitu-
tion and mandatory surcharge as provided for in section 60.35 of the
penal law and section eighteen hundred nine of the vehicle and traffic
law.
S 3. Paragraph (c) of subdivision 2 of section 259-i of the executive
law, as separately amended by chapters 40 and 126 of the laws of 1999
and subparagraph (A) as amended by section 38-f-1 of subpart A of part C
of chapter 62 of the laws of 2011, is amended to read as follows:
(c) [(A)] (I) Discretionary release on parole shall [not] be granted
[merely as a reward] for good conduct [or] AND efficient performance of
duties while confined [but after considering if there is a reasonable
probability], AND FOR PREPAREDNESS FOR REENTRY AND REINTEGRATION INTO
SOCIETY, THEREBY PROVIDING A REASONABLE BASIS TO CONCLUDE that, if such
[inmate] PERSON is released, he OR SHE will live and remain at liberty
without violating the law, and THEREFORE that his OR HER release is not
incompatible with the welfare of society [and will not so deprecate the
seriousness of his crime as to undermine respect for law]. In making the
parole release decision, the procedures adopted pursuant to subdivision
four of section two hundred fifty-nine-c of this article shall require
that the [following be considered] DECISION BE BASED UPON THE FOLLOWING
CONSIDERATIONS: [(i) the institutional record including program goals
and accomplishments, academic achievements, vocational education, train-
ing or work assignments, therapy and interactions with staff and
inmates] (A) PREPAREDNESS FOR REENTRY AND REINTEGRATION AS EVIDENCED BY
THE APPLICANT'S INSTITUTIONAL RECORD PERTAINING TO PROGRAM GOALS AND
ACCOMPLISHMENTS AS STATED IN THE FACILITY PERFORMANCE REPORTS, ACADEMIC
ACHIEVEMENTS, VOCATIONAL EDUCATION, TRAINING OR WORK ASSIGNMENTS, THERA-
PY AND INTERACTIONS WITH STAFF AND OTHER SENTENCED PERSONS, AND OTHER
INDICATIONS OF PRO-SOCIAL ACTIVITY, CHANGE AND TRANSFORMATION; [(ii)]
(B) performance, if any, as a participant in a temporary release
program; [(iii)] (C) release plans including community resources,
employment, education and training and support services available to the
[inmate] PAROLE APPLICANT; [(iv)] (D) any deportation order issued by
the federal government against the [inmate] PAROLE APPLICANT while in
the custody of the department and any recommendation regarding deporta-
tion made by the commissioner of the department pursuant to section one
hundred forty-seven of the correction law; [(v)] (E) any statement,
WHETHER SUPPORTIVE OR CRITICAL, made to the board by the crime victim or
the victim's representative, where the crime victim is deceased or is
mentally or physically incapacitated, TO ASSIST THE BOARD IN DETERMINING
WHETHER AT THIS TIME THERE IS REASONABLE CAUSE TO BELIEVE THAT THE
RELEASE OF THE PAROLE APPLICANT WOULD CREATE A PRESENT DANGER TO THE
VICTIM OR THE VICTIM'S REPRESENTATIVE, OR THE EXTENT OF THE PAROLE
APPLICANT'S PREPAREDNESS FOR REENTRY AND REINTEGRATION AS SET FORTH IN
CLAUSE (A) OF THIS SUBPARAGRAPH; [(vi)] (F) the length of the determi-
nate sentence to which the inmate would be subject had he or she
received a sentence pursuant to section 70.70 or section 70.71 of the
S. 5374 5
penal law for a felony defined in article two hundred twenty or article
two hundred twenty-one of the penal law; [(vii) the seriousness of the
offense with due consideration to the type of sentence, length of
sentence and recommendations of the sentencing court, the district
attorney, the attorney for the inmate, the pre-sentence probation report
as well as consideration of any mitigating and aggravating factors, and
activities following arrest prior to confinement; and (viii) prior crim-
inal record, including the nature and pattern of offenses, adjustment to
any previous probation or parole supervision and institutional confine-
ment] (G) PARTICIPATION AND PERFORMANCE, IF ANY, IN A
RECONCILIATION/RESTORATIVE JUSTICE-TYPE CONFERENCE WITH THE VICTIM OR
VICTIM'S REPRESENTATIVES; (H) THE PROGRESS MADE TOWARDS THE COMPLETION
OF THE SPECIFIC REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD FOR THE
PAROLE APPLICANT, IN THE CASE OF A REAPPEARANCE; AND (I) THE PROGRESS
MADE TOWARDS ACHIEVING THE PROGRAMMING AND TREATMENT NEEDS DEVELOPED IN
THE TRANSITIONAL ACCOUNTABILITY PLAN. The board shall provide toll free
telephone access for crime victims. In the case of an oral statement
made in accordance with subdivision one of section 440.50 of the crimi-
nal procedure law, the parole board member shall present a written
report of the statement to the parole board. A crime victim's represen-
tative shall mean [the crime victim's closest surviving relative] A
MEMBER OF THE FAMILY OR DOMESTIC PARTNER OF SUCH CRIME VICTIM, the
committee or guardian of such person, or the legal representative of any
such person. Such statement submitted by the victim or victim's repre-
sentative may include information concerning threatening or intimidating
conduct toward the victim, the victim's representative, or the victim's
family, made by the person sentenced and occurring after the sentencing.
Such information may include, but need not be limited to, the threaten-
ing or intimidating conduct of any other person who or which is directed
by the person sentenced.
[(B)] (II) Where a crime victim or victim's representative as defined
in subparagraph [(A)] (I) of this paragraph, or other person submits to
the parole board a written statement concerning the release of [an
inmate] A PAROLE APPLICANT, the parole board shall keep that individ-
ual's name and address confidential. WITH REGARD TO ANY STATEMENT FROM A
JUDGE OR DISTRICT ATTORNEY, THE ADDRESS, IF RESIDENTIAL, SHALL BE KEPT
CONFIDENTIAL BY THE BOARD.
S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided that the amendments to paragraph
(a) of subdivision 2 of section 259-i of the executive law made by
section one of this act shall be subject to the expiration and reversion
of such paragraph as provided by section 74 of chapter 3 of the laws of
1995, as amended, when upon such date the provisions of section two of
this act shall take effect.

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